Kerala High Court
M.A.Shabu vs Brd Finance Limited on 21 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
OP(C) NO. 651 OF 2024
IN CS NO.15 OF 2023 OF COMMERCIAL COURT, CHAVAKKAD
PETITIONERS/DEFENDANTS:
1 M.A.SHABU, AGED 43 YEARS, S/O. MANIPARAMBIL
VEETTIL ANTONY, PARAPPOOKKARA VILLAGE & DESOM,
PARAPPOOKKARA P.O., MUKUNDAPURAM TALUK, THRISSUR,
PIN - 680310
2 DEENA SHABU, AGED 34 YEARS, W/O. M.A.SHABU,
PARAPPOOKKARA VILLAGE & DESOM, PARAPPOOKKARA P.O.,
MUKUNDAPURAM TALUK, THRISSUR, PIN - 680310
BY ADVS.R.MAHESH MENON
SACHIN.P.K, VARGHESE XAVIER
RESPONDENTS/PLAINTIFF:
BRD FINANCE LIMITED
BETHANI COMPLEX, THRISSUR ROAD, KUNNAMKULAM
VILLAGE, DESOM, THALAPPILLY TALUK, REPRESENTED BY
LITIGATION CLERK, S.MANI, S/O. MULANKUNNATHUKAVU
SANKARAN, KONCHERY ROAD, MULANKUNNATHUKAVU DESOM,
KILLANNUR VILLAGE, THRISSUR, PIN - 680503
BY ADVS.LINDONS C.DAVIS, E.U.DHANYA(K/672/2006),
RAJITH DAVIS(K/1252/1998) N.S.SHAMILA(K/222/2016),
CHINJU P. JOYIES(K/894/2016)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C).No.651/2024
-:2:-
JUDGMENT
Ext.P4 order passed by the Commercial Court, Chavakkad
(for short 'the trial court') is under challenge in this original
petition.
2. The petitioners are the defendants and the respondent
is the plaintiff in C.S.No.15/2023 before the trial court. The suit
was one for realisation of money based on a chit transaction.
The petitioners entered appearance and filed written statement
and challenged the maintainability of the suit. The
maintainability has been challenged mainly on the ground that
the suit is not of commercial nature. The trial court considered
the issue regarding maintainability as preliminary issue and
found that the suit is perfectly maintainable, as per Ext.P4 order.
It is challenging the said order, this original petition has been
filed.
3. I have heard the learned counsel for the petitioner Sri.
R. Mahesh Menon and the learned counsel for the respondent Sri.
Lindons C. Davis.
4. A perusal of the impugned order would show that the
maintainability has been challenged by the petitioner before the
trial court only on the ground that the suit is not of commercial
nature. As per Section 2 (c)(i) of the Commercial Courts Act,
ordinary transactions of merchants, bankers, financiers and
traders are treated as commercial in nature. The Supreme Court
in Oriental Kuries Ltd v. Lissa (2019 (4) KLJ 878) held that
there is a contractual obligation between the foreman and
subscriber of a chitty. Hence, the same creates a debt on the
date of subscription. So, if the subscriber fails to pay the
instalments, the foreman is entitled to recover the consolidated
chit amount including the future subscription of the defaulting
subscriber. Therefore, as rightly held by the trial court, the
foreman of the chit has to be termed as financier and hence, the
dispute is commercial in nature.
5. The learned counsel for the petitioner submitted that
the petitioner has also challenged the maintainability on another
ground, that another suit instituted by the respondents against
the petitioner for the same relief was already dismissed by the
Additional Munsiff Court, Irinjalakkuda as per Ext.P3 judgment
and hence, the suit is hit by Order IX Rule 9 of the Code of Civil
Procedure (for short the CPC) as well as Order II Rule 2 of the
CPC. I cannot subscribe to the said argument. I went through
Ext.P3 as well as the plaint of the present suit, Ext.P1. It shows
that the suit in Ext.P3 has been filed to realise the defaulted chit
amount for the period from 5.4.2015 to 5.10.2015, whereas,
Ext.P1 suit has been filed to realise the defaulted chit amount for
the period with effect from 5.4.2017. Hence, both the suits are
for different periods. Therefore, there is no question of attracting
either Order IX Rule 9 of the CPC or Order II Rule 2 of the CPC.
There is no illegality or impropriety in the impugned order.
Accordingly, the original petition is dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
APPENDIX OF OP(C) 651/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE MEMORANDUM OF
PLAIINT FILED BY THE RESPONDENT DATED
16-06-2021.
Exhibit P2 THE TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE PETITIONERS DATED 26-07-
Exhibit P3 THE TRUE COPY OF THE JUDGEMENT DATED 26-
06-2023 IN O.S.NO.4082/2015 PASSED BY
THE HON'BLE ADDL. MUNSIFF AT
IRINJALAKUDA
Exhibit P4 THE TRUE COPY OF THE ORDER DATED 07-12-
2023 PASSED BY HON'BLE COMMERCIAL COURT
AT CHAVAKKAD IN C.S.NO.15/2023
